Muhammad Afzaal vs State

H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

LAHORE

(JUDICIAL DEPARTMENT)

Cr. Appeal No.1803 of 2014

Muhammad Afzaal v. The State

Date of hearing 22.05.2019

Appellant by: Mian Muhammad Sikandar Hayat and Mr. Muhammad Asif Hayat, Advocates.

Complainant by: Mr. Muhammad Waseem Khan and Makhdoom Muhammad Adnan Qureshi, Advocates.

State by: Ms. Tahira Parveen, District Public Prosecutor.

MUHAMMAD WAHEED KHAN, J.- Through this appeal, appellant Muhammad Afzaal has challenged his conviction and sentence awarded to him by learned Addl. Sessions Judge, Faisalabad vide judgment dated 13.09.2014 in case FIR No.734/2012 dated 19.06.2012, registered under Section 376 PPC at Police Station Batala Colony, Faisalabad, whereby he was convicted and sentenced as under:

Under section 376 (1) PPC awarded fourteen years imprisonment alongwith fine to the tune of Rs.2,00,000/- and in default thereof, he was ordered to further undergo one year simple imprisonment.

Benefit of section 382-B Cr.P.C. was also extended to the convict.

2.Feeling aggrieved by the judgment passed by the learned trial Court, appellant has assailed his conviction and sentence by filing the instant appeal.

Cr. Appeal No.1803 of 2014

3.Complainant Mst. Fouzia while appearing as PW-3 before the learned trial Court narrated the story of prosecution as under;- “Stated that on 19.06.2012 at about 01:00/01:30 p.m. she as well as Atif Wasim and Tariq Mehmood were present at her residence. Suddenly she heard a noise of cry of her daughter. She as well as Atif Wasim and Tariq Mehmood rushed towards the house of accused Mohammad Afzaal. They heard noise of crying from the roof. They came to the roof where a noise was coming from the room. Tariq Mehmood her companion opened the door and they saw that accused Afzaal is committing rape with her daughter Isra aged about six years. Her daughter was crying at that time and she was smeared with blood. After seeing them accused Mohammad Afzaal fled-away from the scene. Her brother-in-law Tariq Mehmood took her daughter and they boarded her in rickshaw and went to the police station. They moved written application before the police for the registration of case against the accused Mohammad Afzaal. Then her daughter was shifted to Civil Hospital, Faisalabad for treatment and her MLC. Accused Mohammad Afzaal committed heinous offence with her minor daughter Isra, he be punished accordingly.”

4.After registration of case police investigated the case and found the appellant as guilty and by placing his name in column No.3, report u/s 173 Cr.P.C was submitted before the learned trial Court for commencement of trial. Thereafter, formal charge against the appellant was framed, to which he pleaded not guilty and claimed trial.

5.Prosecution produced as many as seven witnesses. Ocular account was furnished by PW-3 Mst. Fouzia Bibi who is mother of victim as well as complainant of the case, PW-4 Atif Waseem and PW-5 Tariq Mehmood. Dr. Mehmooda Khurshid SWMO appeared as PW-1, who medically examined the victim Isra and Iftikhar Hussain ASI, Investigating Officer of the case appeared as PW-6, whereas the remaining witnesses were of

Cr. Appeal No.1803 of 2014

formal in nature. Thereafter, prosecution closed its evidence by producing certain documents.

6.After completion of prosecution evidence, statement of appellant was recorded u/s 342 Cr.P.C., who neither opted to appear as witness u/s 340 (2) Cr.P.C., nor produced any evidence in his defence, however, while answering question (Why this case against you and why the PWs deposed against you?), appellant denied all the allegations leveled against him.

7.After evaluating prosecution evidence available on record, learned trial Court found the prosecution version correct beyond any shadow of reasonable doubt, which resulted into his conviction and sentence as mentioned above.

8.Learned counsels for the appellant submit that the prosecution has failed to prove its case against the appellant beyond shadow of doubt; that the story narrated by the complainant while lodging FIR is not believable and cannot be comprehended at any stretch of imagination; that the alleged victim, namely, Isra aged about 6 years was neither appeared during the course of investigation nor produced by the prosecution during trial to verify the factum of having committed rape by the appellant with her; that the stance of the complainant was falsified by the report of Punjab Forensic Science Agency as it does not confirm the factum of rape with the victim; that the evidence of the complainant and medical evidence were not put to the appellant during his statement u/s 342 Cr.P.C. and the law is settled by now that any incriminating evidence which has not been put to the accused is of no help for the prosecution. Lastly pray that by accepting the instant appeal, appellant may be acquitted of the charge.

9.Conversely, learned Law Officer assisted by the learned counsels for the complainant strongly controverted the

Cr. Appeal No.1803 of 2014

arguments advanced by the learned counsel for the appellant and submits that the prosecution has proved the charge against the appellant beyond reasonable doubt by producing eye witnesses of the alleged incident and medical evidence adduced by PW-1 Dr. Mehmooda Khurshid, who fully supported the ocular version of the case; that no previous enmity exists between the parties, so, appellant could not be involved falsely by the complainant. Lastly, prays that instant appeal may be dismissed while maintaining the conviction and sentence.

10.I have heard arguments and perused the record with the assistance of learned counsel for the parties.

11.After hearing the learned counsel for the parties and having gone through the record, it transpires that the unfortunate incident as alleged in the FIR took place on 19.06.2012 at about 1.00/1.30 p.m. and while narrating the incident as PW-3 Mst. Fouzia Bibi wife of Sajid Mehmood complainant of the instant case stated that on hearing noise of her daughter Isra, she alongwith Atif Waseem (PW-4) and Tariq Mehmood (PW-5) rushed to the house of appellant and saw that the appellant was committing rape with her daughter Isra aged about six years. On reaching PWs, appellant managed to flee away from the crime scene. The victim was moved to Police Station and after lodging crime report, she was medically examined. The other PWs Atif Waseem and Tariq Mehmood also described the incident almost in a similar manner.

12.Dr. Mehmooda Khurshid who appeared as PW-1 before the learned trial Court and stated that on 19.06.2012 at 3.45 p.m. she medically examined the victim Isra daughter of Sajid Mehmood. Her Shalwar was stained with blood, hymen was torn all around, a fresh tear was seen and fresh bleeding was present at the time of examination and while giving her opinion, said doctor opined that rape was committed with the victim but

Cr. Appeal No.1803 of 2014

while giving her final opinion, she opined that although on her clinical finding rape was proved with victim but as per Chemical Examiner reports no recent semen detection was seen and no DNA test was performed.

13.Learned counsels for the appellant vigorously argued that after arrest of the appellant, he was not subjected to medical examination to verify his potency and this aspect was also admitted by the learned Law officer but she states that this lapse was committed by the Investigating Officer of the case. Although PW-6 Iftikhar Hussain ASI Investigating Officer of the case describes that he produced the appellant before doctor and got him medically examined and also got copy of MLC regarding his potency test but the fact remains that neither said MLC is available on record nor prosecution produced the said doctor.

14.On appraisal of entire evidence produced by the prosecution, this Court finds that although the prosecution produced Mst. Fouzia Bibi mother of the victim (complainant) as eye witness and her version was supplemented by Atif Waseem and Tariq Mehmood who appeared as PW-4 and PW-5 respectively. All the three PWs claimed to be the eye witnesses of the incident but fact remains that the victim Isra was never associated during the investigation and this fact was admitted by the Investigating Officer in his cross examination in following terms;-

“I did not record the statement of victim u/s 161 Cr.P.C. I kept on summoning the complainant to bring the victim for recording her statement u/s 161 Cr.P.C. on different dates including 27.06.2012, 30.06.2012, 05.07.2012 and 08.07.2012 but she did not bring the victim for above said purpose.”

Cr. Appeal No.1803 of 2014

15.Another important aspect of the case is that while recording statement of appellant, question No.5 was put to him in the following terms;-

“It is in the prosecution evidence that when you was committing rape with the minor namely Isra, on hue and cry of the above said minor namely Isra, the witnesses namely Tariq Mehmood (uncle of Isra) and Atif son of Muhammad Afzal came on the place of occurrence. What do you say about it?

On perusal of this question put by the prosecution to the appellant, it shows that only Tariq Mehmood (uncle of Isra) PW-5 and Atif Waseem s/o Muhammad Afzal PW-4 were attracted towards the place of occurrence and nowhere it is mentioned regarding presence of Mst. Fouzia Bibi (complainant). It means that evidence of Mst. Fouzia Bibi was never put to the appellant during his statement recorded u/s 342 Cr.P.C.

16.This Court also finds another lapse on part of the prosecution that medical evidence which has paramount importance in this case, as it squarely confirms the factum of rape with the victim, was also not put to the appellant during his statement recorded u/s 342 Cr.P.C. When this situation was confronted to the learned Law officer assisted by the learned counsel for the complainant, she could not reply the same and admitted that the medical evidence has been totally ignored and never put to the appellant. So, I find that this was a huge failure/lapse on part of the prosecution and the learned trial Court as well, where most important incriminating material was not put to the appellant in his statement u/s 342 Cr.P.C. enabling him to explain the circumstances. It is well settled law by now that if any piece of evidence is not put to the accused in his statement u/s 342 Cr.P.C., then same cannot be used against him for his conviction and learned trial Court without realizing the legal position, not only used the above said evidence against

Cr. Appeal No.1803 of 2014

the appellant but also convicted him on such piece of evidence, which on the face of it cannot be sustained. Reliance in this regard is placed on the cases of “IMTIAZ alias TAJ v. The STATE and others” (2018 SCMR 344), “MUHAMMAD NAWAZ and others v. The STATE and others” (2016 SCMR 267) and “MUHAMMAD SHAH v. THE STATE” (2010 SCMR The august Supreme Court of Pakistan in its judgment passed in case of “IMTIAZ alias TAJ v. The STATE and others” referred supra has observed as under;-

“The law is settled that a piece of evidence or a circumstance not put to an accused person at the time of recording of his statement u/s 342, Cr.P.C. cannot be considered against him.”

17.Needless to reiterate that the prosecution is obliged to prove its case against the accused beyond reasonable doubt and if it fails to do so, accused is entitled to the benefit of doubt as of right and any element of doubt as to the guilt of accused shall be resolved in his favour.

18.As a sequel to above discussion, the instant appeal is allowed and conviction and sentence awarded by the learned trial Court to the appellant vide judgment dated 13.09.2014 is set aside and he is acquitted of the charge. He is in jail, so, he is ordered to be released forthwith if not required to be detained in any other case.

(MUHAMMAD WAHEED KHAN)

JUDGE

APPROVED FOR REPORTING

JUDGE

Sajid